Not only is the Environmental Protection Agency regulating greenhouse gas emissions, but some inventive trial lawyers and environmental groups have been demanding for quite a few years that individual American manufacturers pay damages for the effects of global warming. The suits generally involve claims of damages from rising sea levels, but also involve the effects of Hurricane Katrina.
The latest decision from the federal courts came out today. In what promises to be a decisive outcome in this type of case, the U.S. Court of Appeals for the Ninth Circuit concluded that claims by residents of Kivalina, Alaska, about global warming displacing their town with sea water are themselves displaced by federal law. Relying on the Supreme Court’s decision from last year in the American Electric Power (AEP) case, it said that there can be no lawsuits claiming the greenhouse gas emissions are a public nuisance under federal common law. The NAM supported this outcome in an amicus brief two years ago.
This is a resounding and important victory not only for manufacturers, but for a regulatory system grounded on statutes and regulations rather than on lawsuits and court decrees.
While the court dismissed the lawsuit, there remain unresolved questions from the AEP case, such as whether state common law, rather than federal common law, might allow this kind of piecemeal litigation in the future. We hope that the trial bar will recognize the legal and regulatory morass that would be created by further litigation in U.S. courts on this topic. We’re not holding our breath.
Quentin Riegel is vice president, litigation and deputy general counsel, National Association of Manufacturers.